Louisville & N. R. Co. v. Parker, 6 Div. 471.

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J. THOMAS, J.
• Citation: 223 Ala. 626,138 So. 231
• Docket Number: 6 Div. 471.
• Decision Date: 27 June 1931
• Parties: LOUISVILLE & N. R. CO. v. PARKER.

138 So. 231

223 Ala. 626

LOUISVILLE & N. R. CO.
v.
PARKER.

6 Div. 471.

Supreme Court of Alabama

June 27, 1931

Rehearing Denied Dec. 3, 1931.

Appeal from Circuit Court, Cullman County; W. W. Callahan, Judge.

Action under Federal Employers' Liability Act by Roxie Parker, as administratrix of the estate of Samuel D. Parker, deceased, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals.

Affirmed conditionally.

ANDERSON, C.J., and SAYRE and BROWN, JJ., dissenting.

Under the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-59), the contributory negligence of an injured or deceased servant will not bar recovery, but will only reduce recovery proportionately. [138 So. 235]

Plea 3, as originally filed, is as follows:

"For further answer to each count of the complaint, separately and severally, defendant says that the said intestate Samuel D. Parker, an employee of the defendant, voluntarily assumed the risks which proximately caused his injury and death, in this: Defendant alleges that intestate, Samuel D Parker, had, at the time of his injury, been working for the defendant Company for four years or more in the capacity of a section hand and trackwalker, and during said time had worked regularly on the tracks of the defendant and had many times walked over and along the tracks at or about the place of his injury and was thoroughly acquainted with and had knowledge of the tracks and roadbed all along, at and about the place of his injury. That at the place of his injury, defendant maintained north and south bound main tracks, and that trains under orders from the dispatcher in charge of the particular division, traveled over the tracks, and that it was a matter of occasional necessity that north bound trains traveled over the south bound main line or tracks, and south bound trains traveled over the north bound main line or tracks under orders from the dispatcher, and trains had been so operated at times, against the current of traffic, during the several years that Parker had worked as a section hand and trackwalker, all of which was well known to the said Samuel D. Parker from his service with the defendant. That it was one of the duties of Parker to go over and examine the tracks where he was injured, and to keep them in proper repair, and at the time of his injury he was upon or dangerously near to the south bound main track, and was injured thereon by a train traveling north on the south bound main said train moving under orders from the dispatcher.

"Defendant alleges that intestate, Parker, had been frequently advised and warned during the term of his employment as a section hand or trackwalker by his foreman, that trains were, at times, operated over said tracks against the current of traffic, that is, that a north bound train would run over the south bound track, and vice versa, and that it was his, Parker's, duty to watch out for all such trains, as well as all trains.

"Defendant further alleges that it had in force and effect, at the time of intestate's injury, rules and instructions pertaining to the work and duty of intestate, a copy of which Rules and Instructions had been given to said intestate, and he was familiar therewith a long time prior to his injury, which said rules provided: ***" Setting out rules 3 and 33 as reproduced in the opinion.

"Defendant avers that intestate, with full acquaintance and knowledge of defendant's right and frequent operation of its trains as aforesaid, and with knowledge of the danger and an appreciation of the risk naturally incident to the duties of a trackwalker, he was upon or dangerously near the south bound main track and that said intestate, on the occasion of his injury, voluntarily assumed and took a place upon said defendant's track on the south bound main, and was injured thereon by a north bound train operated thereon."

Pleas 4 to 12, inclusive, adopt the general averments of plea 3.

The concluding paragraphs of the several pleas are, respectively, as follows:

4. "Defendant alleges that intestate, under his employment as a section hand and trackwalker, was upon or dangerously near the south bound track and thereby voluntarily assumed the risk incident to trains being operated under orders of the dispatcher, in a northerly direction over the south bound main track and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."

5. "Defendant alleges that intestate under his employment by the defendant as a section hand and trackwalker, voluntarily assumed the risk incident to trains being operated northerly over the south bound main track, under orders of the dispatcher, without lookout being maintained by the train operatives for section hands and trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."

6. "Defendant alleges that intestate, under his employment by the defendant as a section hand and trackwalker, voluntarily assumed the risk incident to trains being operated northerly over the south bound main track, under orders of the dispatcher, without warning by bell or whistle being sounded by operatives of the train, for section hands and trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."

7. "Defendant alleges that intestate, under his employment by the defendant as a section hand and trackwalker, voluntarily assumed the risk incident to trains being operated northerly over the south bound main track, under orders of the dispatcher, without a lookout being maintained by the train operatives, and without warning by bell or whistle being given or sounded to section men and trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate he was injured and killed."

8. "The defendant further alleges that it was known to intestate that at times trains were operated over either main line in either direction under orders of the dispatcher, and that the train operatives of such trains, on [138 So. 236] said occasions, did not maintain lookout or watch for section men and trackwalkers, and with such knowledge and appreciation of the danger and risk incident to the duties of being upon said track as a section hand or trackwalker, the said intestate was upon the said track, and voluntarily assumed the risk incident to trains being operated thereover, by the operatives thereof without maintaining a lookout for section hands or trackwalkers, and as a proximate consequence of the risk so voluntarily assumed by intestate, he was injured and killed."

9. "The defendant further alleges that it was known to intestate that at times trains were operated over either main line, in either direction, under orders of the dispatchers and the train operatives on such occasions did not give signals or warnings with bell or whistle for the benefit of section men or trackwalkers while so operating said train, and that said intestate was upon said track and voluntarily assumed the risk incident to trains being operated thereover by the operatives thereof, without giving signals or warnings with bell or whistle for the benefit of section men or trackwalkers, and as a proximate consequence of the risk so voluntarily assumed, the intestate was injured and killed."

10. "Defendant further alleges that it was known to intestate that at times trains were operated over either main line in either direction under orders of dispatcher, and that the train operatives on such occasions did not maintain a lookout for section hands and trackwalkers, and that if they did maintain a lookout and discover a trackwalker upon or near the track, that they would assume that such trackwalker knew or was advised of the approach of the train by his observation and of his own knowledge, and without further notice or signal by the train operatives, and that he would, from his own knowledge of the approaching train, seek a place of safety from such approaching train, and with such knowledge, said intestate was upon the track and voluntarily assumed the risk which proximately resulted in his injury and death."

11. "Defendant further alleges that it was known to intestate that at times trains were operated over either main line, in either direction under orders of dispatcher, and that the trains operated on such occasions did not give signals or warnings with bell or whistle while so operating said trains, for section hands and trackwalkers, and that if they did give signals or warnings with bell or whistle after discovering a trackwalker upon or near the track, that they would assume that such trackwalker knew or was advised of the approach of the train, and that he would, from his own knowledge of the approaching train, seek a place of safety from such approaching train, and with such knowledge, said intestate was upon the track and voluntarily assumed the risk which proximately resulted in his injury and death."

12. "Defendant further alleges that it was known to intestate that at times trains were operated over either main line, in either direction, under orders of the dispatcher, and that the train operatives, on such occasions, did not maintain a lookout for section men and trackwalkers, and did not give warning or signals with bell or whistle to section men or trackwalkers, while so operating said train, and that if they did maintain a lookout and discover a trackwalker on or near the track, or if they did give warning or signals with bell or whistle to such section men or trackwalkers, while so operating said train, that they would assume that such trackwalker knew and was advised of the approach of the train by his own observation and of his own knowledge, and without further notice or signal by the...